NANCE AND DIAZ: Supreme Court’s power trip

Justices usurp Congress’ tax-writing role

By Penny Nance and Mario Diaz - -
Friday, June 29, 2012

What just happened to my health care? With the Supreme Court’s ruling Thursday on Obamacare, the high court has forever altered the carefully delineated balance of powers established by our founders in the Constitution. It has written a blank check that allows the federal government to intrude in Americans’ personal lives like never before in history. It was a sad day for America.

The court correctly concluded that the individual mandate could not survive under the Commerce Clause or the “Necessary and Proper Clause” of the Constitution. Yet itchanged the justification for the statute to uphold the penalty for not obtaining insurance as a “tax,” therefore rendering it constitutional. That is not the proper role of the Supreme Court.

The court is free to interpret legislation but not to rewrite it. The dissenting justices noted as much, framing the issue in the proper way: “The issue is not whether Congress had the power to frame the minimum-coverage provision as a tax, but whether it did so.”

It most certainly did not.

One of the reasons this legislation passed in the first place was that it was sold asnot being a tax. President Obama made that clear. He famously said: “[F]or us to say that you’ve got to take a responsibility to get health insurance is absolutely not a tax increase. What it’s saying is, is that we’re not going to have other people carrying your burdens for you anymore than the fact that right now everybody in America, just about, has to get auto insurance. Nobody considers that a tax increase.”

The bill itself refers to the provision as a “penalty,” not as a tax. There is no question that was the intent. Even the court treats it as a penalty for purposes of the Anti-Injunction Act (AIA). Yet it has helped the government perpetrate an unprecedented fraud on Americans by turning around and treating it as a tax for constitutional purposes.

Never before had the court held that something that was not a tax for AIA purposes was nevertheless a tax for purposes of the taxing power under the Constitution. We are deeply disappointed that Chief Justice John G. Roberts Jr. fell for such a flawed line of reasoning.

The implications of this ruling go far beyond health care. As we have seen already with the impact of the contraception mandate on our religious liberty, there are far-reaching consequences to giving Congress this type of power. These were the very consequences our founders warned against. It is the reason they created this tension between the three branches of government. The Supreme Court failed to live up to its role.

Congress must, therefore, act immediately to repeal this horrendous legislation with common-sense health care reform that actually can make health care more affordable while at the same time protecting our freedoms. The Congressional Budget Office estimates that the president’s health care plan will cost $1.76 trillion over the next 10 years. It creates more than 150 new boards, agencies and programs that will make our health care decisions for us. Now that the Supreme Court has deemed it a tax, Obamacare will become one of the biggest tax increases on middle-class families in history.

We simply must not stand for it. We are encouraged that the House of Representatives already has scheduled a vote to commence the process of repeal on July 11, but the one thing we can take from this whole episode is that it is up to us. “We the people” must make our voices heard. This is not a time to sit silent and wait for Congress to take the next steps. We must demand them.

That is why we cannot overstate the impact this will have on the upcoming presidential election. If this legislation is ever going to be fully repealed, Americans must take to the polls. Concerned Women for America (CWA) is in full gear with our biggest get-out-the-vote effort ever, She Votes 2012, making sure we elect people who will listen to the real needs of Americans.

As the nation’s largest public-policy women’s organization, CWA knows that women make 80 percent of the health care decisions for their families and are likely to be the caretaker if someone in the family falls ill. We also know that women account for 60 percent of the costs incurred at doctors’ offices.

We know what’s at stake. Are we up to the challenge?

Penny Nance is president and CEO of Concerned Women for America (CWA). Mario Diaz is CWA’s legal counsel.